Supreme Court judgment on smoke and wine grapes
The Supreme Court has dismissed court action against the Department of Environment and Conservation for negligently carrying out a prescribed burn that resulted in smoke taint of wine grapes. Justice Graeme Murphy handed down his decision on Friday 12 March
The action was brought by Southern Properties (WA) Pty Ltd and others against DEC and the State of Western Australia alleging that DEC negligently performed its prescribed burning program next to the plaintiffs' vineyards in the 2004 autumn burning season, causing smoke damage to wine grapes.
Justice Murphy found that a duty of care, as alleged by the plaintiffs, did not exist. If such a duty did exist, he found that it was not breached. He dismissed the plaintiffs’ action.
DEC Director General Keiran McNamara said it was the first time a court had considered whether a duty of care existed in relation to prescribed burning activities conducted by a public authority with fire management and biodiversity conservation functions and responsibilities.
The case was heard in September last year.
Justice Murphy concluded it would be unreasonable to impose a duty of care to avoid smoke damage to wine grapes on a public authority with fire management and biodiversity conservation functions and responsibilities in circumstances where it was not possible to avoid some smoke during veraison (a critical period in the development of wine grapes).
Mr McNamara said the issue of smoke and wine grapes continued to present significant difficulties for all stakeholders despite advancements in smoke and wine grape research.
“DEC will continue to work with stakeholders to find the best possible long-term solution. DEC will continue to consult with the grape and wine production industry on burn programs and research projects, and will take into account the concerns of individual growers,” he said.
Following an information sharing forum held by DEC on 27 January this year and attended by a range of stakeholders, the Wine Industry Association of Western Australia and DEC met and agreed that:
- growers will provide DEC with forward projections and weekly updates of how vintage is progressing and the likely finish to harvest of reds, whites and major varieties in each region;
- DEC will use vintage information to fine-tune the scheduling of prescribed burns in regions where such burns might impact on grape growers; and
- DEC will advise the wine industry of burns considered high priority and essential for the upcoming burning season to allow growers to make more informed vineyard production decisions for that period.
“In making daily decisions on prescribed burning, DEC’s fire managers will continue to take into account the potential for smoke to blow over individual vineyards that are adjoining or close to planned burns on DEC-managed lands.
“DEC may also consider deferring some burns in late autumn to allow grape harvesting to be completed where the Department is confident that another opportunity to achieve the burn following grape harvest will occur in that season.”
The department also is collaborating with the Department of Agriculture and Food and Curtin University of Technology on research into smoke effects to grapevines and taint in wine.
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